Can Congress Make
You Buy Broccoli?
David Orentlicher, MD, JD
Samuel Rosen Professor and
Co-Director, Hall Center for Law and Health
Indiana University Robert H. McKinney
School of Law
Adjunct Professor, Indiana University School of
Medicine
1
The constitutional question


The national government is a government
of limited powers—Congress must be able
to invoke an enumerated power to enact
any legislation
What is the source of power for the
individual mandate to purchase health
care?


Commerce Clause (Art. I, § 8, cl. 3)?
Taxing and Spending Clause (Art. I, § 8, cl. 1)?
2
The challengers’ problem



Congress can require everyone to buy
health care coverage from the
government—single payer (taxing power)
Congress can require everyone to buy
private health care coverage as a
condition of obtaining medical care
(commerce power)
Why can’t Congress simply require
everyone to buy health care coverage
from private insurers?

Why is it worse to require participation in a
privately-operated health care system than in
a government-run system?
3
Commerce Clause challenge

According to critics, the individual
mandate cannot be justified under the
Commerce Clause
The Commerce Clause allows Congress to
regulate interstate economic activity or
intrastate economic activity that has an
interstate impact
 The individual mandate constitutes the
regulation of inactivity


Hudson, 728 F. Supp. 2d 768 (E.D. Va. 2010);
Vinson, 780 F. Supp. 2d 1256 (N.D. Fla. 2011)
4
Commerce Clause response



The critics have misframed the question
The Commerce Clause allows Congress to
regulate health insurance companies
In the Affordable Care Act, Congress has
prohibited health insurance companies
from taking into account individual health
status (i.e., no preexisting conditions
clauses)

Just as the Civil Rights Acts of 1964 prohibit
discrimination on the basis of race or sex, the
Affordable Care Act of 2010 prohibits
discrimination on the basis of health status
5
Commerce Clause response

Not fair to prohibit preexisting conditions
clauses if people can pick and choose when
to buy insurance—healthy people will just
wait until they’re sick to purchase coverage


States with community rating and no mandate
saw non-group insurance markets collapse
The anti-discrimination provision works in
tandem with the individual mandate


The individual mandate thus is an implied part of
the Commerce Clause power (Thomas More Law
Center v. Obama, 651 F.3d 529 (6th Cir. 2011))
The individual mandate is justified under the
Necessary and Proper Clause (Art. I, § 8, cl. 16)
6
Commerce Clause response

What would happen if the Affordable Care Act
did not include the individual mandate?

Congressional Budget Office estimated that the
number of uninsured would increase by 16
million—eliminating half of the impact of the Act


CBO, Effects of Eliminating the Individual Mandate to
Obtain Health Insurance (June 16, 2010)
Other estimates range from eliminating threefourths to one-fourth of the impact of the Act on
access to health care coverage

MIT economist Jonathan Gruber (24 million), RAND
Corporation (22 million), Urban Institute (18 million),
Lewin Group (8 million)
7
Commerce Clause response


The individual mandate should not be
seen as a regulation of inactivity
Rather, it entails a regulation of the
economic decision whether to
purchase health care insurance or to
self-insure

Everyone uses the health care system at
some point, so must either carry
insurance or pay out of pocket

Thomas More Law Center v. Obama, 651 F.3d
529 (6th Cir. 2011)
8
Commerce Clause challenge

What about Lopez and Morrison? Hasn’t the
Supreme Court narrowed the reach of the
Commerce Clause?



The Court was worried about Congress intruding into
areas of local concern that should be regulated by
states (K-12 education, community crime). Access to
health care insurance is a matter of national concern.
In Raich, Perez and other cases, the Court upheld
provisions that, standing alone, would not be
constitutional but were permissible as important parts
of broad regulatory programs that were valid overall.
Even if the application of doctrine is uncertain,
application of underlying principle is not
9
Slippery slope?



What about the implications of allowing
Congress to regulate “inactivity?” Don’t we
need the courts to protect us from an
overreaching legislature?
In 1824, Chief Justice Marshall wrote that
the accountability of Congress to voters is
generally an adequate safeguard
We know from 70 years of history that
Marshall was correct when it comes to
purchase mandates

Congress has had the power to force us to buy
innumerable goods since the 1940’s and has not
abused that power
10
Slippery slope?

Virtually any other purchase mandate
Congress might want to pass, it has been
able to pass by regulating economic activity


People could be required to buy broccoli when
they buy food, or to cultivate broccoli when they
grow their own crops
People could be required to own a GM car as a
condition of buying gasoline


Congress sometimes requires the purchase of one
product as a condition of buying another product (seat
belts and cars, V-chips and TVs)
The individual mandate simply reflects the
distinctive nature of health care insurance

Which answers the critics’ concern about the
unprecedented nature of the mandate
11
Taxing power argument

Congress has the power “to lay and collect
taxes . . . to . . . provide for the . . . general
welfare of the United States” (Art. I, § 8)


As long as the tax serves the general welfare and
has a non-exclusive, revenue-raising purpose, it
is valid
How is the individual mandate a tax?

One could describe it as a duty to pay 2.5
percent of income (subject to minimum and
maximum payments) to help fund health care for
the indigent, with an exemption from the tax if
you have your own insurance policy

The individual mandate appears in the IRS part of the
US Code
12
Taxing power argument

But raising revenue is not the purpose
of the tax—it’s designed to get people
to buy insurance

Congress long ago abandoned its
distinction between regulatory taxes and
revenue-raising taxes
In Sanchez, 340 US 42 (1950), the Court
upheld a marijuana tax
 As long as a tax is productive of some revenue,
the Court will not “speculate as to the motives
which moved Congress to impose it, or as to
the extent to which it may operate to restrict
the activities taxed” (Sonzinsky)
 The Court will ensure that the tax is not so
severe as to be a criminal penalty in disguise

13
Taxing power argument

But Congress called the 2.5 percent levy a
“penalty” rather than a “tax” (Florida v.
HHS, 648 F.3d 1235 (11th Cir. 2011))

Congress is not bound by its stated source of
authority. If another source of authority exists,
that is sufficient

Fidelity to the statutory text is important when
deciding the meaning of the statute (is it a 2.5
percent or 3.5 percent tax?), but not when
deciding whether the statute is valid

No reason to think Congress cares whether the
mandate is upheld on basis of Commerce Clause
or taxing power
14
Taxing power argument

There is no accountability problem when
Congress and the president change their
justification


Voters who don’t want to pay more to the
government don’t care whether they pay a
“penalty” or a “tax”
Voters know whom to blame for the mandate (as
the November 2010 election results indicated)


This is not like New York or Printz
Consider the separation of powers and first
amendment concerns if the Court holds elected
officials to their words—and few acts would be
immune from challenge (Mitch Daniels estimated
the cost of the Iraq War at $50-60 billion)
15
Medicare precedent

If Medicare is constitutionally valid, so
must be the individual mandate



Medicare Part A entails a mandate to purchase
hospital coverage for one’s senior years; the
Affordable Care Act entails a mandate to
purchase health care coverage for one’s current
years
Critics of the individual mandate recognize that
Congress could have passed “Medicare-for-All”
But Medicare-for-All constitutes a greater
exercise of the national government’s power
than does the Affordable Care Act—If the
concern is to constrain governmental power,
then the Affordable Care Act should be
preferable to Medicare-for-All
16
Necessary and Proper Clause

Congress has the power “to make all
Laws which shall be necessary and
proper for carrying into Execution” its
other powers

“Let the end be legitimate, let it be
within the scope of the constitution, and
all means which are appropriate, which
are plainly adapted to that end, which are
not prohibited, but consist with the letter
and spirit of the constitution, are
constitutional” (emphasis added)

McCullough v. Maryland